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03/15/2017

Randy Barnett on David Rudenstine on Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Another oblivious critique of Neil Gorsuch and Originalism (commenting on David Rudenstine [Cardozo]: Gorsuch's Adherence to Originalism Should Keep Him From SCOTUS).

It's a long, detailed and pretty harsh critique --  here are a few highlights: 

[Professor Rudenstine argues:]

Some [originalists] concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.

While it is true that some originalists have favored framers intent or ratifiers understanding, most today seek the original public meaning of the text at the time it was enacted. Regardless, for this criticism to be telling, Professor Rudenstine needs to identify circumstances where these different stances would lead to different results or outcomes. After all, the meaning of the words in the text to its framers, to its ratifiers, or to the general public, were very likely to be identical, since the meaning of the English language they employed was the same for all. Indeed, even originalists who ultimately seek the original public meaning of the text consider the meaning attributed to the text by its framers and ratifiers as probative evidence of original public meaning.

To take two examples where I am familiar with the available evidence, the word “commerce” in the Commerce Clause and “arms” in the Second Amendment meant the same thing to all three groups. So the practical constraining effect of originalism is preserved unless these differing audiences can be shown to have had differing understandings of the text, which is quite unlikely. At any rate, Professor Rudenstine offers no such examples of differential meanings.

Agreed, and in any event, to repeat a point I've made, well, repeatedly:  originalism does not depend on showing that originalism produces a clear outcome in every case.  All originalism claims is that when originalism produces a clear outcome, that outcome should be followed.  Thus it is not an argument against originalism that originalism sometimes (or even frequently) does not produce a clear outcome.  (It would be an argument against originalism that originalism never produces a clear outcome, but I don't believe that argument is possible).

From later in the critique:

[Professor Rudenstine argues:]

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

This is fundamentally inaccurate. Originalism does not require “judges to to be historians.” It merely requires judges to identify the meaning–or communicative content–of the text of the Constitution. More specifically, it requires them to identify where that public meaning when enacted differed from the meaning these words have today. For example, although the Supreme Court has never expanded the actual meaning of the word “commerce” in the Commerce Clause (instead, it expanded the powers of Congress by a capacious construction of the Necessary and Proper Clause), some today may identify the word “commerce” with “economic activity,” though its original meaning was narrower than that. At the time of the Founding, and at least into the mid-Twentieth Century, the word “commerce” referred to an activity distinct from the economic activities of agriculture, husbandry, or manufacturing. While the latter words referred to different manners of producing things, the former referred to the trade and transportation of things that are so produced.

You don’t need a PhD. in history to discover this. ...

But at any rate, neither judges nor scholars ought to employ “law office history,” if what is meant by this is “cherry-picking” evidence to fit the conclusions they may wish to reach. An argument against bad originalism is not an argument against originalism.

And from the conclusion:

At this point, it is only fair to ask Professor Rudenstine to identify his own approach to constitutional interpretation and application to see if it performs better or worse than originalism. For is that not the fair test of the relative strengths of competing constitutional approaches? My guess is that, whatever his approach, it will perform worse by every criteria by which he judges originalism as wanting. But I cannot know this for certain until he informs readers like me of his own allegedly superior approach.